THEIR VIEW: McGraw fails to step up

By The West Virginia Record | Jul 14, 2011


HARPERS FERRY -- In the ongoing legal fights against unchecked federal government regulation and authority, a state's Attorney General should be on the front lines. From a constitutional perspective, an Attorney General is supposed to uphold the rule of law as the top legal officer and leading law enforcement official of a state. A successful Attorney General should be actively engaged in interpreting and challenging laws.

Unfortunately, in West Virginia, due in part to the weakness of the State Attorney General's office, Mountain State residents appear to have precious few defenses against the growing power of the federal government. Despite the consistent, illegal, and negative implications of overarching federal mandates emanating from the Environmental Protection Agency (EPA) and from Congress under the new health care law, the West Virginia Attorney General's office neglects to fulfill its basic constitutional role of asserting states' rights and Tenth Amendment arguments against the Obama Administration.

Sadly, Darrell McGraw, the current West Virginia Attorney General, refuses to serve as the champion West Virginians so desperately need on health care, environmental, fiscal, and regulatory challenges.
To suggest that West Virginia is literally being buried under the weight of federal regulations would be no understatement.

Significantly, both Democratic and Republican Members of Congress have weighed in strongly against the EPA's vast regulatory scheme and have introduced legislation to curb the EPA's authority. These lawmakers, and other officials, are reacting to the fact that the federal government is literally grinding the approval of mining permits in the state to a halt. According to the Register-Herald newspaper, only nine of eighty mining permits from West Virginia were approved in a two year period ending in January of 2011. If coal is king in West Virginia, then the EPA is a threat to the crown.

Beyond the excesses wrought on the West Virginia economy by the EPA, the new health care law presents similar, long-term negative implications for the State. With the health care insurance expansions scheduled to take effect in 2014, West Virginia's financial burdens will increase significantly. According to a recent report issued by several leading Members of Congress (referencing the Kaiser Family Foundation), the cost of health care reform to the state will equal approximately $217 million between 2014 and 2019. Thereafter, Medicaid spending will grow rapidly as West Virginia begins to directly pay for its share of the insurance expansions in 2020.

When faced with similar financial challenges due to enactment of the health care law, many State Attorneys General opted to file suit against the Administration to enjoin implementation of the law. These states – 26 are involved in the litigation pending in the 11th Circuit Court of Appeals – argued correctly, among other things, that the Medicaid expansions were coercive and represented an undue burden to the states. The states also said that imposition of an individual mandate to purchase health care insurance violated the Commerce Clause of the United States Constitution, which did not permit the federal government to regulate "inactivity."

Unfortunately, here in West Virginia, Darrell McGraw inexplicably decided against joining the other 26 states. Even though the health care law has a disproportionately adverse impact on West Virginia and is very unpopular in the State (over 65 percent opposed the law late last year), McGraw declines to intervene.

McGraw's failure to aggressively press the EPA with a full-throated constitutional defense of West Virginia economic interests is similarly perplexing. Presumably, challenging the EPA should be a top priority, especially when the Agency oversteps its legal authority to regulate West Virginia energy companies. Yes, the Attorney General is technically joining some lawsuits, but he is not fully leveraging the resources available to him.

Sadly, while the Attorney General's office says it will fight to uphold states' rights, it far too infrequently follows through on its constitutional charge. McGraw seems too focused on finding ways to enrich his power base than enforcing the rule of law. Indeed, according to the West Virginia Record: "the people of West Virginia know how McGraw hands out plum contingency contracts to his lawyer cronies and empowers them to go after the ever-decreasing number of companies doing business in our state."

At a time when the President relies upon regulatory dictates to enforce a liberal agenda that will bankrupt West Virginia companies and reduce citizens' freedoms, West Virginia needs a leader to take on the long arm of the federal government. The West Virginia Constitution and Code set forth the role the Attorney General must play in our state system; will McGraw finally uphold his oath of office? If not, isn't it time for West Virginia to begin looking for a new Attorney General? In 2008, West Virginia voters almost elected former Delegate Dan Greear as Attorney General. In 2012, McGraw is arguably even more vulnerable, especially if Greear or another strong candidate were to run. Against the overwhelming interests of voters, McGraw refuses to more aggressively assert states' rights arguments against the Obama Administration, and inexplicably will not join the challenge to the health care law – will Nero continue to fiddle while Rome burns?

Morrisey is a resident of Harpers Ferry, a health care attorney and a former Chief Health Counsel to the House Energy and Commerce Committee. He has been actively involved in the states' legal challenge to the health care law in the 11th Circuit Court of Appeals.

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